State justices end tribal dispute with ski area

In this Dec. 10, 2016, photo, snowboarders are on a slope at Arizona Snowbowl Ski Resort (Wikimedia Commons/Courtesy of Coconino National Forest)

The Arizona Supreme Court has squashed what could be the last legal maneuver to block the use of treated effluent to make snow on the San Francisco Peaks.

In a 5-2 ruling Thursday, the majority concluded the Hopi Tribe has no right to file a claim that the practice creates a “special nuisance” because it interferes with the ability of tribal members to practice their sacred rituals on the mountains north of Flagstaff.

The majority said the effect of claimed environmental damages on tribal members is no greater than those suffered by other members of the general public who use the land. And the justices said only those with a specific interest in the land, whether by virtue of ownership or financial impact, are entitled to bring such “special nuisance” claims under Arizona law.

The ruling drew a stinging dissent from Justice Scott Bales who chided his colleagues for failing to understand what he said is the special nature of the harm the tribe is alleging.

Bales, joined by Justice Clint Bolick, said long before there was Snowbowl — and long before the public was concerned about the Coconino National Forest — tribal members were going to what they considered sacred peaks to conduct sacred rituals. All that, he said, would be changed if treated effluent, which is unfit for human consumption and retains some contaminants, is used on the land.

“Moreover, the myriad chemicals in the water will wreak unknown damage on the local ecosystem, further degrading traditional and sacred Hopi resources and locations,” he continued. “In sum, the Hopi face the destruction and desecration of some of their most sacred locations and places.”

But Justice John Pelander, writing for himself and the four other justices, said allowing the Hopi to block the use of treated effluent based solely on a claim of religious interference would effectively empower the tribe to veto decisions made by public officials who, after hearing testimony and considering evidence, decided that the practice would be in the public interest.

Tribal chairman Tim Nuvangyaoma said he was disappointed in the ruling.

“This has been a long-fought battle, in many different forms, and through it all we had hoped that justice would be done,” he said in a prepared statement. “Unfortunately, we did not prevail.”

Thursday’s ruling appears to be the last gasp in a fight that dates back decades, first in an unsuccessful bid to try to block the ski operation on public lands. When that failed, the Hopi along with other tribes went to federal court, making various environmental and religious freedom law claims to preclude Snowbowl from using treated effluent purchased from Flagstaff to make snow.

Those, too, ended up a legal dead-end in 2008 when the 9th Circuit Court of Appeals tossed the case.

That led to this 2010 lawsuit by the Hopi to use state public nuisance laws to make its case as Flagstaff was moving forward with the sale of treated effluent to the resort.

Coconino County Superior Court Judge Mark Moran tossed the case, agreeing with Snowbowl and the city that only those who suffer a particularized injury can bring public nuisance lawsuits. Earlier this year, however, the state Court of Appeals said tribal members are entitled to make the case that they will be harmed in a way beyond that of the general public.

Pelander, however, said that’s not how Arizona nuisance laws work.

He said those alleging a “special injury” must show that the activities they are seeking to enjoin will have an effect on their use and enjoyment of their own property. A claim of some financial loss also would be sufficient, Pelander said.

Extending that right to sue based on religious importance, the justice said, creates all sorts of problems.

“Because a particular place’s religious importance is inherently subjective, courts are ill-equipped to determine whether one form of incidental interference with an individual’s spiritual activities should be analyzed differently from that of another,” he wrote.

Pelander also noted that the approval for the use of treated effluent had been through several reviews, including not just the city’s vote but also had the approval of the U.S. Department of Agriculture and the U.S. Forest Service.

“Aside from its disagreement with the outcome, the tribe does not allege that any aspect of this process was procedurally flawed or otherwise defective,” Pelander said. Instead, he said, the tribe wants Arizona courts to balance the tribe’s claim against that decision.

The majority said it might be different if the tribe has a property or financial interest in the land at issue. But a strictly religious interest claim, they said, can’t be made in state courts.

That last contention drew derision from Bales.

He said that means the tribe could sue if the Forest Service allowed the Hopi to sell pine boughs, pinon nuts or native tobacco from the San Francisco Peaks, something it does not.

“We may live in a material world,” Bales wrote. “But it is a sad comment on our law to suggest that other interests — such as religious traditions and practices manifest through millennia and recognized by federal law — cannot support a claim of special injury for purposes of the public nuisance doctrine.”